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FIRE has joined with the American Civil Liberties Union of Massachusetts (“ACLUM”) in filing a so-called “amicus” (friend-of-the-court) brief supporting Brandeis University undergraduate David Arlen Schaer in his lawsuit against the University. Brandeis convicted Schaer in an unfair proceeding (one that violated the University’s own disciplinary procedures) of engaging in unwanted sexual activity with a female student and thereby creating a “hostile environment” for his accuser. Schaer was sentenced not only to a three-month suspension but to “undergo appropriate professional counseling.” This “counseling” requirement is becoming increasingly common at our current therapeutic and socially engineered campuses, in violation of the most fundamental rights of privacy. Schaer sued and, in the end, won in the Appeals Court of Massachusetts, the state’s intermediate appellate court. The Appeals Court held that although most courts are very reluctant to involve themselves in purely academic questions that arise in higher education, they are more willing to intervene when disciplinary proceedings are conducted either very unfairly or in violation of the university’s own stated procedures. These procedures, said the court, constitute a contract with the student, and their violation may be redressed in court.

The case involves a charge by the complainant that Schaer essentially committed rape. Universities increasingly define as “date rape” what the criminal courts would find to be consensual intimate activity. This scenario is seen more and more frequently on college and university campuses. In general, FIRE chose to join this case because of its commitment to fair and rational fact-finding procedures in all student disciplinary cases. In particular, FIRE is deeply concerned about the politicized adjudication by campus courts of sexual crimes which university judicial systems are very ill equipped to deal with. Authentic charges of rape should be tried in criminal courts, with all of the due process that such courts provide. FIRE takes note a growing number of cases of “he said/she said” scenarios at universities, where the case is often decided on the basis of whether the victim belongs to a protected group. In such contexts, the male student would lose every case, every time, despite the facts. Rape is a crime of unspeakable evil; guilt or innocence of such a charge must be determined fairly, appropriately, and without prejudice.

Brandeis University asked the state’s highest court, the Supreme Judicial Court (SJC) of Massachusetts, to review the Appeals Court’s opinion, and the SJC agreed to do so. Oral argument is scheduled for Monday, May 1, 2000, and a decision likely will be issued by August 1, 2000.